No. 11-817

____________________________________________

In The

Supreme Court of the United States

_____________________________________________

STATE OF FLORIDA,

Petitioner, v.

CLAYTON HARRIS,

Respondent.

__________________________________________

On Petition for Writ of Certiorari to the

Supreme Court of Florida

__________________________________________

MOTION FOR LEAVE TO FILE BRIEF AND

BRIEF OF THE NATIONAL POLICE CANINE

ASSOCIATION AND POLICE K-9 MAGAZINE

AS AMICI CURIAE IN SUPPORT OF

PETITIONER

__________________________________________________

Arthur T. Daus III

2417 N.E. 22nd Terrace

Fort Lauderdale, Florida 33305

[Tel.] (954) 242-5584

Ted.Daus@PoliceK-9Magazine.com

Counsel for Amici Curiae

MOTION OF NATIONAL POLICE CANINE

ASSOCIATION AND POLICE K-9 MAGAZINE

FOR LEAVE TO FILE AN AMICI CURIAE

BRIEF

The National Police Canine Association and

Police Canine Magazine (“amici”) hereby move,

pursuant to S. Ct. R. 37.2(b), for leave to file an

amici curiae brief in support of the petition for

writ of certiorari to the Supreme Court of Florida.

Amici are filing this motion because after

receiving consent1 from the petitioner, we were

denied consent from the Respondent. A copy of the

proposed brief is attached.

As explained on page 1 of the attached brief

under “Interest of Amici Curiae”, the National

Police Canine Association is a large organization

consisting of police canine handlers from all

across the country. The Association set the

national standards for certification for its

membership as related to drug detection dogs.

Moreover, this case is of particular interests to the

Association due to the fact that they seek to

represent not only the national membership but

also specifically their members located in the

State of Florida which will be directly impacted by

this Courts action.

1 Request for consent was sought from both Petitioner and

Respondent with formal notice of intent to file this brief to both

parties given to counsel of record on Jan. 13, 2012. Petitioner

consented and Respondent did not consent.

Police Canine Magazine is a national

publication having a readership of over 20,000

police canine handlers that live and work in all

fifty (50) states in the union. Police Canine

Magazine has a training and consulting branch in

which they organize national training seminars

throughout the United States in efforts to better

educate law enforcement on the proper use of drug

dogs. They are the leader in the industry in the

area of police canine usage providing invaluable

information to federal, state and local canine law

enforcement. Accordingly, amici have a unique

interest in seeing that the legal standard set by

this court of a canine team being well trained and

certified be followed and enforced without the

cumbersome extraneous requirements that have

been improperly imposed on handlers, when it

comes to the area of drug dog reliability, by the

Florida Supreme Court.

This brief will assist the Court in determining

whether to grant certiorari because amici are well

positioned to point out the importance of this case

to the police canine industry. The amici can bring

to the for front and inform the Court of the broad

implications of this case across the country in the

areas of police dog vendors, police dog trainers,

police dog handlers, police dog organizations and

the multiple police agencies on the federal, state

and local levels. Amici cannot emphasize enough

the importance of uniformity in the application of

this courts precedent as to the standard of well

trained and certified police drug dogs.

Accordingly, amici respectfully request that the

Court grant leave to file the attached brief as

amici curiae. Respectfully submitted,

Arthur T. Daus III

Counsel of Record 2417 N.E. 22nd Terrace

Fort Lauderdale, FL 33305

(954) 242-5584

Counsel for Amici January, 2012

i

TABLE OF CONTENTS

PAGE

Table of Authorities………………………………ii

Interest of Amici Curiae …………………….……1

Summary of the Argument………..…….…….. 2

Argument………………………………...………. 3

THE STATE CAN MAKE A PRIMA FACIE SHOWING OF PROBABLE CAUSE FOR A SEARCH BASED ON A NARCOTICS DETECTION DOG’S ALERT BY DEMONSTRATING THAT THE DOG HAS BEEN PROPERLY TRAINED, AND CERTIFIED…………………………………..……..…3 State Authority………… …… …..……...................3 Federal Authority……………………...……………10 Conclusion……………………………………………15

ii

Table of Authorities Page

Coleman v. State, 911 So. 2d 259 (Fla. Dist. Ct. App. 2005……..2,3,5 Dawson v. State, 518 S.E.2d 477 (Ga. Ct. App. 1999)……………….4 Debruler v. Commonwealth, 231 S.W.3d 753 (Ky. 2007)…………………………8,9

Florida v. Jardines, United States Supreme Case No.

Certiorari granted on January 6, 2012…..………14

Harris v. State, 71 So.3d 756 (Fla. 2011)..………...………..passim Harris v. State, 989 So. 2d 1214 (Fla. Dist. Ct. App. 2008)…….2,3

Illinois v. Caballes, 543 U.S. 405 (2005)………………………passim

Indianapolis v. Edmond, 531 U.S. 405 (2005)………………………passim

Joe v. State, 73 So.3d 791 (Fla. Dist. Ct. App. 2011)….…..6

Matheson v. State, 870 So. 2d 8 (Fla. Dist. Ct. App. 2003)………4

iii Ohio v. Simmons, 2011 WL 6179577 (Ohio App. 11 Dist.)……...7 State v. Laveroni, 910 So. 2d 333 (Fla. Dist. Ct. App. 2005)…2,3,4 State v. Lopez, 850 N.E.2d 781 (Ohio App. 2006)………….……..…6 State v. Nguyen, 726 N.W.2d 871 (S.D. 2007)…………………….…...9

State v. Nguyen, 811 N.E.2d 1180 (Ohio App. 6 Dist.,2004)…………7 State v. Yeoumans, 172 P.3d 1146 (Idaho App. 2007)………………...…8 United States v. Allen, 159 F.3d 832, (4th Cir. 1998)……………………….11 United States v. Age, Slip Copy, 2011 WL 4495307 C.A.4 (Md.2011) …11 United States v. Berry, 90 F.3d 148 (6th Cir. 1996)…………………………..12 United States v. Boxley, 373 F.3d 759 (6th Cir.2004).....................................10

United States v. Hill, 195 F.3d 258 (6th Cir. 1980)………………………..11

United States v. Klein,

626 F.2d 22 (7th Cir. 1980)…………………………12

iv

United States v. Lopez, 380 F.3d 538 (1st Cir. 2004)……………………….10

United States v.Olivera-Mendez,

484 F.3d 505 (8th Cir. 2007)…………………………12

United States v. Outlaw,

319 F.3d 701 (5th Cir. 2003)…………………………10

United States v. Place,

462 U.S. 696 (1983)………………………passim

United States v. Robinson,

390 F.3d 853 (6th Cir. 2004)…………………………10

United States v. Sundby,

186 F.3d 873 (8th Cir. 1999)…………………………11

1

INTEREST OF AMICI CURIAE2

Police canine handlers, all across the United States,

have an ardent interest in combating illegal narcotics.

Drug detection dogs perform a crucial service for law

enforcement related to these efforts. Police K-9 Magazine

is a national publication with a 20,000 canine handler

readership that covers every state in the union. Most of

those law enforcement officers are canine handlers that

have a vested interest in the issue before the court. The

National Police Canine Association is an association that

governs, sets standards and certifies police work dogs for

their membership. Upon passing their independent

certification, police dogs are certified that they are well

trained and have the unique ability to locate the source of

existing narcotic odor. The National Police Canine

Association is headquartered out of Arizona. The amici

have a substantial interest in this Court’s determination of

whether the Florida Supreme Court has decided an

important federal question in a way that conflicts with the

established Fourth Amendment precedent of this Court by

holding that an alert by a well-trained narcotics detection

dog certified to detect the odor of illegal contraband is

insufficient to establish probable cause for the search of a

vehicle? The Magazine and all law enforcement officers

and canine handlers in all fifty states along with the

2 Pursuant to Supreme Court Rule 37, amici provided counsel of

record for all parties with timely notice of the intent to file this brief.

Consent was granted by the Petitioner and not by the Respondent.

Therefore, attached with this brief is a motion for leave of court to

file. This brief was authored by counsel for the amici and funded by

the amici.

2

National Police Canine Association have a distinct

interest in the correct disposition of this matter.

SUMMARY OF THE ARGUMENT

The State can make a prima facie showing of

probable cause for a warrantless search based on

a narcotic dog’s alert by establishing that the dog

has been properly trained, and independently

certified. After the state meets its initial burden,

the dog’s reliability can then be contested by the

defendant through challenging the performance

records of the dog, training records of the dog or

other evidence, such as expert testimony.

Because an alert by a well trained and certified

narcotics detection dog, standing alone, provides

an officer with probable cause to search, this

Court should reverse the decision of the Florida

Supreme Court in their decision Harris v. State, 71 So. 3d 756 (Fla. 2011) and thereby approve of

the First District Court of Appeal’s decision in

Harris v. State, 989 So. 2d 1214 (Fla. Dist. Ct.

App. 2008), and in doing so, approve the holdings

of two others Florida District Courts of Appeal in

State v. Coleman, 911 So. 2d 259, (Fla.. Dist. Ct.

App. 2005), and State v. Laveroni, 910 So. 2d 333

(Fla. Dist. Ct. App. 2005) and bring the State of

Florida in line with the vast majority of the courts

and jurisdictions across the country that properly

follow this court’s precedent of Illinois v. Caballes,

3

543 U.S. 405 (2005); Indianapolis v. Edmond, 531

U.S. 32 (2000); United States v. Place, 462 U.S.

696 (1983).

ARGUMENT

THE STATE CAN MAKE A PRIMA FACIE SHOWING OF PROBABLE CAUSE FOR A SEARCH BASED ON A NARCOTICS DETECTION DOG’S ALERT BY DEMONSTRATING THAT THE DOG HAS BEEN PROPERLY TRAINED, AND CERTIFIED. STATE AUTHORITY

The First District Court of Appeal of Florida

(hereinafter “1st D.C.A.”) decided Harris relying

on The Fifth District Court of Appeal’s of Florida

(hereinafter “5th D.C.A.”) decision in State v. Coleman, 911 So.2d 259 (Fla. 5th D.C.A. 2005) and

The Fourth District Court of Appeal’s of Florida

(hereinafter “4th D.C.A.”) decision in State v. Laveroni, 910 So.2d 333 (Fla. 4th D.C.A. 2005)

that the state can make a Prima Facie showing, of

a narcotics dog reliability, by demonstrating that

the dog has been properly trained and certified .

Thereby, the three intermediate appellate courts

of Florida have aligned themselves with this

Honorable Court’s established precedent in

Illinois v. Caballes, 543 U.S. 405 (2005);

Indianapolis v. Edmond, 531 U.S. 405 (2005);

United States v. Place, 462 U.S. 696 (1983) by

4

holding that the state make a prima facie showing

of a narcotics dog’s reliability by merely

demonstrating canine has been properly trained

and certified.

For example, the Fourth District Court of

Appeal wrote in Laveroni, “Our review of cases

from around the country indicates that

Matheson,[Harris is based upon Matheson] which

held that the state must establish the reliability of

the dog through performance records in order to

show probable cause, is out of the mainstream”.

(Emphasis added) The 4th D.C.A. researched

extensively the issue that is before the Court

relying on both State and Federal authority.

The Court of Appeals in and for the State of

Georgia in Dawson v. State, 518 S.E. 2d 477 (Ga.

Ct. App. 1999) on this specific issue held that

evidence of certification as a narcotics detection

dog constitutes prima facie evidence of reliability

but that this presumption can be rebutted by the

defendant with proof of the failure rate of the dog

or through other evidence the defendant wished to

present, with the final determination to be made

by the trial court. The 4th D.C.A., in relying on

Dawson and rejecting the Harris style of

reasoning of the Florida Supreme Court, aligned

itself with the mainstream legal philosophy all

over this country.

5

The 5th D.C.A. found itself in a unique position

in resolving this issue in their opinion State v. Coleman, 911 So.2d 259 (Fla. 5th D.C.A. 2005).

The 5th D.C.A. rejected the Harris style of

reasoning of the Florida Supreme Court as flawed

and united itself with the 4th D.C.A. and the rest

of the country in finding: “Having reviewed both

decisions and the authorities upon which they

rely, we align ourselves with the Fourth District

Court and conclude: [T]hat the state can make a

prima facie showing of probable cause based on a

narcotic dog's alert by demonstrating that the dog

has been properly trained and certified. If the

defendant wishes to challenge the reliability of the

dog, he can do so by using the performance

records of the dog, or other evidence, such as

expert testimony.... Whether probable cause has

been established will then be resolved by the trial

court.” Coleman at 261. Thereby, aligning

themselves with the legal precedent of this

Honorable Court decisions in Illinois v. Caballes,

543 U.S. 405 (2005); Indianapolis v. Edmond, 531

U.S. 405 (2005); United States v. Place, 462 U.S.

696 (1983).

Because of the Florida Supreme Court’s Harris decision, the District Courts of Appeal are now not

following this Court decisions in Illinois v. Caballes, 543 U.S. 405 (2005); Indianapolis v. Edmond, 531 U.S. 405 (2005); United States v. Place, 462 U.S. 696 (1983) stating that a well-

6

trained and certified narcotics dog provides

probable cause and instead are now applying the

“[T]he State must present the training and

certification records, an explanation of the

meaning of the particular training and

certification of that dog, field performance records,

and evidence concerning the experience and

training of the officer handling the dog, as well as

any other objective evidence known to the

officer…” Joe v. State, 73 So.3d 791 (Fla. 5th DCA

2011)

State courts across the country have ruled on

this issue following the authority of the United

States Supreme Court. In State v. Lopez, 166

Ohio App.3d 337, 850 N.E. 2d 781 (2006) the Ohio

Court of Appeals held that “…the majority hold

that the state can establish reliability by

presenting evidence of the dog’s training and

certification, which can be testimonial or

documentary. Once the state establishes

reliability, the defendant can attack the dog’s

“credibility” by evidence relating to training

procedures, certification standards, and real-

world reliability”. Thus aligning themselves with

the legal precedent of this Honorable Court

decisions in Illinois v. Caballes, 543 U.S. 405

(2005); Indianapolis v. Edmond, 531 U.S. 405

(2005); United States v. Place, 462 U.S. 696

(1983).

7

Ohio Courts have continued to dismiss defense

arguments that the state cannot establish

probable cause for a search by introducing

evidence that the dog was trained and certified.

The Ohio Court of Appeals, as recently as

December 12, 2011, held that United States v. Place (1983), 462 U.S. 696, 103 S.Ct. 2637, 77

L.Ed.2d 110 (holding a K–9 sniff by a “well-

trained narcotics-detection dog” as “ sui generis ”

because it “discloses only the presence or absence

of narcotics, a contraband item”). Ohio v. Simmons, 2011 WL 6179577 (Ohio App. 11 Dist.)

“[O]nce a trained drug dog alerts to the odor of

drugs from a lawfully detained vehicle, an officer

has probable cause to search the vehicle for

contraband.” “Ample evidence related to Rebel's

training and certification was presented during

the suppression hearing to establish that he is a

“well-trained narcotics dog” under Place, supra.

…Based on that information, we presume that

Rebel is a reliable narcotics dog, and Mr.

Simmons failed to put on any evidence to the

contrary.” Simmons, supra.

State v. Nguyen, 157 Ohio App.3d 482, 2004–

Ohio–2879, engaged in a substantial survey of

federal and state law related to the matter of

establishing K–9 reliability and the evidence

required to do so.

8

The Nguyen court recognized that the national

trend stated “that a drug dog's training and

certification records can be used to uphold a

finding of probable cause to search and can be

used to show reliability, if required, but canine

reliability does not always need to be shown by

real world records.” Id. at ¶ 46. In conclusion, the

Sixth District held that “proof of the fact that a

drug dog is properly trained and certified is the

only evidence material to a determination that a

particular dog is reliable.” Simmons, supra.

The Court of Appeals of Idaho in State v. Yeoumans, 172 P.3d 1146 (Ct.App.2007) The

Idaho court noted the isolated legal Harris style of

reasoning used by the Florida Supreme Court as

flawed. In so doing, once again a state court,

aligned themselves with the legal precedent of

this Honorable Court decisions in Illinois v. Caballes, 543 U.S. 405 (2005); Indianapolis v. Edmond, 531 U.S. 405 (2005); United States v. Place, 462 U.S. 696 (1983).

The Supreme Court of the Commonwealth of

Kentucky, in a dog tracking case (a dog that

smells and follows human scent), held in Debruler v. Commonwealth, 231 S.W.3d 752 (Ky.2007) that

the Commonwealth provided sufficient foundation

for admission at trial of the dog’s tracking ability.

As to the issue of the dog’s training and

qualifications, the Kentucky Supreme Court found

9

“…Officers Howard and Morgan provided

evidence that the dogs had been trained at an

Indiana dog-training facility. According to Officer

Howard's testimony about Denise [the 1st dog],

she had been certified in tracking by the

Owensboro Police Department and is recertified

every year following thirty-two hours of additional

training. Furthermore, she completes practice

runs every week. Officer Morgan testified that

Bady [the 2nd dog] has been certified by the

United States Police Canine Association and

competes twice a year to maintain this

certification. Like Bady, she completes practice

runs on a weekly basis”. Debruler at 758.

The Amici notes the rationale above, that if

evidence of a dog’s unique olfactory ability meets

the admissibility standard at trial by the officer’s

testimony related to training and certification,

then certainly it should be sufficient to establish a

prima facie presumption of reliability at a motion

to suppress which may be rebutted by the defense.

The Supreme Court of South Dakota tackled

the similar issue before this Honorable Court in

their decision State v. Nguyen, 726 N.W.2d 871

(S.D. 2007). The Supreme Court of South Dakota

held that a drug detection canine was deemed

reliable based upon the presentation of its

certification and training.

10

The South Dakota Supreme Court was aware and

rejected the Harris style of reasoning used by the

Florida Supreme Court as flawed. Through this

finding, once again a state court, aligned

themselves with the legal precedent of this

Honorable Court decisions in Illinois v. Caballes,

543 U.S. 405 (2005); Indianapolis v. Edmond, 531

U.S. 405 (2005); United States v. Place, 462 U.S.

696 (1983).

FEDERAL AUTHORITY

Federal Courts have repeatedly held that

appropriate certification by an organization is

sufficient to show reliability of a dog. See United States v. Robinson, 390 F.3d 853 (6th Cir. 2004)

reh'g en banc denied, Feb. 5, 2005 (testimony by

the handler that dog was trained and certified

was sufficient to show reliability for purposes of

probable cause); United States v. Lopez, 380 F.3d

538 (1st Cir. 2004), cert. denied, 543 U.S. 1074,

125 S.Ct. 924, 160 L.Ed.2d 812 (2005) (handler's

testimony that the dog was certified on the day of

the sniff and had never given a false indication

was sufficient to show reliability); United States v. Boxley, 373 F.3d 759 (6th Cir.), cert. denied,

543 U.S. 972, 125 S.Ct. 435, 160 L.Ed.2d 345

(2004); United States v. Outlaw, 319 F.3d 701 (5th

Cir. 2003) (reliability acceptable when handler

and dog have completed all standard training

procedures for drug detecting teams); United

11

States v. Hill, 195 F.3d 258 (6th Cir. 1999), cert.

denied, 528 U.S. 1176, 120 S.Ct. 1207, 145

L.Ed.2d 1110 (2000) (handler's inability to state

with precision what in-service training should be

conducted; reliability nonetheless established);

United States v. Sundby, 186 F.3d 873 (8th Cir.

1999) (training records were not required to show

reliability).

The Supreme Court has repeatedly held that a

drug dog sniff is not a search under the Fourth

Amendment and a reliable dog alert provides

probable cause that illegal drugs are present.

Illinois v. Caballes, 543 U.S. 405 (2005).

Moreover, the United States Fourth Circuit Court

of Appeal recently held “We have rejected a

requirement that “dog alert testimony must

satisfy the requirements for expert scientific

testimony ... [because] the dog's alert ... would

serve not as actual evidence of drugs, but simply

to establish probable cause to obtain a warrant to

search for such substantive evidence.” United States v. Allen, 159 F.3d 832, 839–40 (4th

Cir.1998)." U.S. v. Age, Slip Copy, 2011 WL

4495307 C.A.4 (Md.2011). "Assuming, without

deciding, that we would require specific evidence

of a dog's reliability before permitting his alert to

provide probable cause, we find sufficient evidence

in this case. The Government provided evidence

regarding the dog's detailed training and

continuing certification." Age, supra.

12

Notably, the United States Court of Appeals for

the Eight Circuit in their opinion Untied States v. Olivera-Mendez, 484 F.3d 505, 512 (8th Cir. 2007)

wrote “We have held that to establish a dog’s

reliability for the purpose of a search warrant

application, the affidavit need only state the dog

has been trained and

certified to detect drug and a detailed account of

the dog’s track record or education is

unnecessary.” If the canine’s reliability in a search

warrant affidavit is established by merely stating

that the dog is trained and certified allowing for a

finding of probable cause to issue the warrant to

enter into someone’s property, then it goes

without saying that establishing the canine’s

training and certification through testimony at a

motion to suppress should surely be sufficient to

establish a prima facie finding of reliability that

the defendant may rebut at the hearing. See;

United States v. Klein, 626 F.2d 22 (7th Cir. 1980)

(finding the affiant’s representation to the

magistrate that the dog “graduated from a

training class in drug detection in October 1978”

and “has proven reliable in detecting drug and

narcotics on prior occasions” sufficient.) and

United States v. Berry, 90 F.3d 148 (6th Cir. 1996)

(finding contrary to defendant's suggestion, to

establish probable cause, the affidavit need not

describe the particulars of the dog’s training.

Instead, the affidavit's accounting of the dog sniff

indicating the presence of controlled substances

13

and its reference to the dog’s training in narcotics

investigations was sufficient to establish the dog’s

training and reliability.)

Drawing an analogy to search warrant law, the

State’s search warrant is presumed valid at a

motion to suppress hearing. When the defendant

is challenging the validity of a search warrant, the

prosecution is afforded a presumption that the

issuing magistrate acted properly in determining

probable cause prior to signing the warrant. The

presumption may be rebutted by the defendant

but, the burden is on the defendant to attack the

foundation of the warrant.

Therefore, the legal philosophy of the request

of the petitioner is already well established in

United States criminal law. The petitioner merely

is requesting that this Honorable Court treat the

issue of a dog’s training and certification in the

same fashion. The Amici wish to emphasize that

in reversing the Florida Supreme Court and

establishing this presumption, in no way deprives

the defendant of his right to confront the officer

regarding his canine partner’s reliability. The

training records and certification documentation

are discoverable. They can be reviewed by the

defendant and challenged in court. The trial court,

at the close of all the evidence at the motion to

suppress, is still free to determine the reliability

of the dog. Enabling the State to make this prima

14

facie showing merely puts the proverbial ball in

the defendant’s court and deprives him of nothing.

The significant flaw in the Florida Supreme

Court’s Harris analysis is their focus on their

requirement that the state be mandated to

present to the trial court the dog’s field

performance records, along with concentrating on

the issue of residual odor. The Florida Supreme

Court’s mistake is losing focus of the basic

premises that dogs do not find drugs but instead

locate drug odor. Which is why the rigorous

standards set by the independent national

governing bodies for dog certification for

determining reliability , that are being basically

ignored in the Harris reasoning, need to be given

their due deference in court.

This case is uniquely suited for a granting of

certiorari in light of this court granting review of

Florida v. Jardines, Case No. 11-564 (Jan. 6,

2012). These cases go hand in hand with each

other because once an officer uses the narcotics

dog, with or without a search warrant for the

front door sniff of a house, the Florida Supreme

Court has set forth the wrong standard of review

for the reliability of the dog.

This Honorable Court needs to address this

critical issue and bring the State of Florida back

in line with this Court’s precedent by reversing

the Florida Supreme Court.

15

Conclusion

The Court should grant the petition for a writ

of certiorari, set the case for briefing and oral

argument with the eventual outcome being that of

reversal of the Florida Supreme Court because

allowing the ruling to stand would threaten a

widely used drug-fighting tactic due to the fact

that the Florida Supreme Courts decision conflicts

with this high court’s precedents in Illinois v. Caballes, 543 U.S. 405 (2005); Indianapolis v. Edmond, 531 U.S. 405 (2005); United States v. Place, 462 U.S. 696 (1983).

Respectfully submitted,

Arthur T. Daus III

2417 N.E. 22nd Terrace

Fort Lauderdale, Florida 33305

[Tel.] (954) 242-5584

Ted.Daus@PoliceK-9Magazine.com

Counsel for Amici Curiae

January 2012